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Mealey's Daubert

July 23, 2019
Expert’s Methods To Fix Trade Secret Damages Proper, Judge Decides

SAN FRANCISCO — A California federal judge on July 19 declined to exclude opinions by an expert on damages in a trade secrets dispute between competing companies that operate online chat services after finding that the expert’s methods are reliable under Daubert v. Merrell Dow Pharmaceuticals Inc. (LivePerson, Inc. v. [24]7.ai, Inc., No. 17-cv-01268, N.D. Calif., 2019 U.S. Dist. LEXIS 121005).
July 23, 2019
Delaware Supreme Court Says Expert Testimony Still Required Under Ohio Law

WILMINGTON, Del. — Two asbestos plaintiffs needed expert testimony satisfying Ohio causation laws despite recent changes in the state, Delaware’s top court concluded July 22 (In re: Asbestos Litigation Craig Charles Richards, et al. v. Copes-Vulcan Inc., et al., No. 546, 2018, Del. Sup., 2019 Del. LEXIS 362).
July 23, 2019
4th Circuit Throws Out $7 Million Award For Newborn’s Brain Damage

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on July 11 vacated a $7.1 million award to the mother of a child born with severe respiratory problems who developed brain damage, concluding that the mother failed to present sufficient expert testimony that a physician violated the standard of care (Kayla Butts, et al. v. United States, No. 18-1693, 4th Cir., 2019 U.S. App. LEXIS 20593).
July 17, 2019
Expert’s Bonus Pay Calculations Reliable, Federal Magistrate Rules

BATON ROUGE, La. — A branch manager’s attempt to force his former employer to pay him a bonus for 2016 based on the branch’s financial results survived a bid for summary judgment, and the manager’s expert witness dodged the employer’s request to exclude his testimony, with a Louisiana federal magistrate judge denying both of the employer’s motions July 16 (Damain Kerek v. Crawford Electric Supply Company, Inc., No. 18-76, M.D. La., 2019 U.S. Dist. LEXIS 117786).
July 17, 2019
Judge Limits Expert’s Testimony About Fraud Defendant’s Prescribing Habits

BIRMINGHAM, Ala. — A federal judge in Alabama on July 15 granted in part a motion to exclude testimony from an insurance fraud defendant’s expert regarding state-specific standards on the prescribing of opioids, finding that the doctor had not reviewed the information when forming his opinion (United States v. Patrick Emeka Ifediba, et al., No. 18-cr-0103-RDP-JEO, N.D. Ala., 2019 U.S. Dist. LEXIS 116826).
July 11, 2019
Police Expert On Sex Trafficking Allowed In Federal Prostitution Case

BALTIMORE — An FBI special agent can testify as an expert on prostitution for the government’s prosecution of a Maryland man on sex-trafficking charges because her opinions will help the jury understand the business of prostitution, a federal judge decided July 9 (United States v. Ryan Russell Parks, No. 1:18-cr-00317, D. Md., 2019 U.S. Dist. LEXIS 113550).
July 10, 2019
Magistrate Judge Trims Expert’s Testimony In Personal Injury Action

CHICAGO — An architectural expert for a personal injury plaintiff who was hurt when a store’s sliding doors closed on him can testify about how such doors work and the industry standards for them, but any talk about the doors being defective or not properly maintained is forbidden, an Illinois federal magistrate judge ruled July 9 (Paul Munoz v. Menard, Inc., No. 18-cv-2571, N.D. Ill., 2019 U.S. Dist. LEXIS 113064).
July 10, 2019
Ex-Worker Seeks Review Of Expert Witness Ruling In Retaliation Suit

WASHINGTON, D.C. — A woman who failed to prove her retaliatory discharge claim on remand from the U.S. Supreme Court took her battle back to the high court on May 29, arguing in a second petition for certiorari that the trial court’s mistaken exclusion of her expert witness cost her the case (Jackie Hosang Lawson v. FMR LLC, et al., No. 19-2, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 2288).
July 08, 2019
10th Circuit Affirms Daubert, Suppression Denials Over Parolee’s GPS Data

DENVER — A man convicted of federal robbery and firearms offenses did not have an expectation of privacy in GPS data collected in connection with a parole program, a 10th Circuit U.S. Court of Appeals panel ruled July 1, upholding a trial court’s denial of the man’s motion to suppress the data as wrongly searched without a warrant under the Fourth Amendment to the U.S. constitution (United States v. Vincent Scott Mathews, No. 18-1215, 10th Cir., 2019 U.S. App. LEXIS 19611).
July 03, 2019
Expert Witness, Summary Judgment Rulings Upheld In Suit Over Fall At Work

CHICAGO — A scrap yard worker injured on the job when he fell from a car crusher cannot maintain a product liability suit against the manufacturer and renter of the crusher without his expert’s testimony, which was properly excluded for lack of a reliable opinion, the Seventh Circuit U.S. Court of Appeals held July 2 (Richard A. Clark v. River Metals Recycling, LLC, et al., No. 18-3034, 7th Cir., 2019 U.S. App. LEXIS 19780).
July 02, 2019
Partial Summary Judgment Granted in Yasmin Birth Control Pill Stroke Case

SAN FRANCISCO — A California federal judge on June 28 granted partial summary judgment in a Yasmin birth control pill stroke case and denied defendant Bayer Corp.’s motion to exclude plaintiffs’ expert witnesses (Susan Galinis, et al. v. Bayer Corporation, et al., No. 09-4980, N.D. Calif., 2019 U.S. Dist. LEXIS 108952).
July 01, 2019
Rent-To-Own Firm Seeks Judgment, Witness Exclusion In Spyware Privacy Lawsuit

ERIE, Pa. — A rent-to-own (RTO) retailer and one of its franchisees on June 28 moved for summary judgment related to a couple’s claims under the Electronic Communications Privacy Act (ECPA), telling a Pennsylvania federal court that the plaintiffs did not plead sufficient facts or damages to support their privacy assertions (Crystal Byrd, et al. v. Aaron’s Inc., et al., No. 1:11-cv-00101, W.D. Pa.).
July 01, 2019
Expert’s Testimony Limited To Presence, Levels Of Mold, Judge Rules

NEW CASTLE, Del. — A trial court judge in Delaware on June 27 denied a solar panel installation company’s motion to exclude the testimony of a couple’s expert witness, finding that while he was qualified to render an opinion on the presence and levels of mold in their home, he could not opine as to whether the defective installation of solar panels caused water leakage that led to the mold growth (Dominic P. DiStefano, et al. v. KW Solar Solutions Inc., et al., No. N16C-11-015 CLS, Del. Super., New Castle Co., 2019 Del. Super. LEXIS 310).
July 01, 2019
Rulings On Experts, Judgment For Microsoft Affirmed By Panel In Patent Row

WASHINGTON, D.C. — A Delaware federal court in a patent infringement suit against Microsoft Corp. properly excluded one expert’s survey and another’s opinions for the plaintiff company and did not err in awarding Microsoft summary judgment of no indirect infringement, the Federal Circuit U.S. Court of Appeals decided June 28 (Parallel Networks Licensing, LLC v. Microsoft Corporation, No. 18-1120, Fed. Cir., 2019 U.S. App. LEXIS 19442).
June 28, 2019
Trade Secret, Patent Experts Vetted By Federal Judge In Wireless Technology Row

SAN FRANCISCO — A California federal judge on June 25 trimmed proposed expert testimony from both sides in a patent infringement and trade secrets misappropriation suit over a project by Google LLC to provide wireless services through the use of balloons in the stratosphere (Space Data Corporation v. Alphabet Inc., et al., No. 5:16-cv-3260, N.D. Calif., 2019 U.S. Dist. LEXIS 106297).
June 25, 2019
Expert’s Testimony Limited To Building’s Design Defects, Judge Rules

BATON ROUGE, La. — A federal judge in Louisiana on June 24 granted a woman’s motion to preclude a defense expert from testifying on legal conclusions about her responsibilities as a contractor but found that her challenges to the opinions on design defects in a building went to the weight of his testimony (Janet Jeanes v. Greg McBride, et al., No. 16-1259, W.D. La., 2019 U.S. Dist. LEXIS 105136).
June 25, 2019
2nd Circuit: Expert Properly Excluded In Estate’s Suit Against Former Attorney

NEW YORK — With an expert witness’s opinions in support of a woman’s legal malpractice claims properly excluded for lack of reliability, a trial court correctly awarded the defendant attorney summary judgment, the Second Circuit U.S. Court of Appeals determined June 20 (Celeste Puppolo v. John J. Welch, Jr., et al., No. 18-2601, 2nd Cir., 2019 U.S. App. LEXIS 18493).
June 20, 2019
3rd Circuit: Expert’s Exclusion Proper In Injured Woman’s Failure-To-Warn Case

PHILADELPHIA — A New Jersey federal judge properly excluded expert testimony for a woman seeking to hold a personal watercraft maker liable for injuries she received in a fall from a watercraft, the Third Circuit U.S. Court of Appeals determined June 17 in also affirming judgment for the watercraft company (Angela Ruggiero v. Yamaha Motor Corporation, U.S.A., et al., No. 18-1206, 3rd Cir, 2019 U.S. App. LEXIS 18143).
June 17, 2019
9th Circuit Reverses Class Denial In Generic Drug Price-Gouging Case

SAN FRANCISCO — Both named and unnamed plaintiffs in a drug-pricing class action allege the same injury from the same conduct, satisfying the typicality requirements for a class action, a Ninth Circuit U.S. Court of Appeals panel held June 14 in reinstating the class and expert testimony (Christopher Corcoran, et al. v. CVS Health, et al., No. 17-16996, 9th Cir.).
June 14, 2019
4th Circuit Reverses Exclusion Of Experts In Suit Over Woman’s Death

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on June 12 sent a negligence suit over an elderly woman’s death after taking pills that were mailed to the wrong address back to the trial court to conduct a Daubert analysis for three medical experts because their causation opinions were improperly disallowed (Michael A. Small v. WellDyne, Inc., et al., No. 18-1638, 4th Cir., 2019 U.S. App. LEXIS 17545).